Sources on Early Chinese Law Before the Yuelu Academy Finds 3
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Sources on Early Chinese Law before the Yuelu Academy Finds 3 Chapter 1 part 1: introduction – chapter 1 Sources on Early Chinese Law before the Yuelu Academy Finds 1.1 Received Literature Until the second half of the 20th century, the possibilities for research on early Chinese law were rather limited due to the scarcity of sources. Even though the beginnings of statute law can be traced back at least to the late Spring and Autumn period (722–481 BC), specific legal texts had not been handed down within the otherwise so abundant Chinese literary transmission until the 7th century AD. The oldest extant legal code can be dated to the Tang dynasty (AD 618–907).3 From early historiographic sources we know that as early as during the late Spring and Autumn and the early Warring States period (6th and 5th centuries BC), in a time of political instability and permanent military conflicts, several attempts were made to stipulate laws in writing.4 The first attempt was made by the chancellor of the state of Zheng 鄭, Zichan 子產 (d. 522 BC), who had so-called Xingshu 刑書 (“Documents on Punishment”) compiled by him cast on bronze vessels in the year 536 BC.5 Other states followed this example: In 513 BC “Documents on Punishment”, compiled in 549 BC by chancellor Fan Gai 范匄 (also known as Fan Xuanzi 范宣子, d. 548 BC), were cast on bronze vessels in the state of Jin 晉.6 In the state of Zheng, penal laws were also recorded on bamboo slips by Deng Xi 鄧析 (d. 501 BC) in the late 6th century BC.7 Neither the exact wording nor any details on the con- tent of these early examples of written law have been transmitted. According to an account in the “Treatise on Penal Law” of the Jinshu 晉書, which was compiled in the 7th century AD, the so-called “Canon of Law” (Fajing 法經) is said to have had the most significant influence. This canon of penal law, of which only the division into six chapters and their titles is known, was com- piled by Li Kui 李悝 (455–395 BC) from the state of Wei 魏 and allegedly served as a blueprint for the penal laws introduced by the reformer Shang Yang 商鞅 3 See the Tanglü shuyi in the edition by Liu Junwen (1983). For an annotated translation see Johnson 1979, 1997. 4 On these early examples of written law see e.g. Caldwell 2014, 14–25. 5 Zuo Zhao 6,607,3. 6 Zuo Zhao 29,729,18. 7 Zuo Ding 9,771,5. © Koninklijke Brill NV, Leiden, 2016 | doi 10.1163/9789004315655_002 4 Part 1: Introduction – Chapter 1 (390–338 BC) in Qin 秦 around 356 BC.8 After the conquest of all other king- doms and the unification of 221 BC, these Qin laws became valid in the entire Qin Empire. Although the first Chinese empire of the Qin dynasty (221–206 BC) only lasted for 15 years, this dynasty gained paramount importance because it set a long-lasting framework for the succeeding Chinese empires with regard to the law and administration of justice. Before the foundation of the empire, several ancient Chinese states had attempted to create written law, but in no other state had rule been based so strictly on statutory law as in Qin. The rulers of the following Han dynasty (206 BC–AD 220) and important representatives of clas- sical learning were unanimous in disapproving of the overthrown dynasty, and influenced the historiography of Han times accordingly, which was the most important source on the history of the Qin dynasty until the 20th century. Therefore, the Shiji 史記 or the “Treatise on Penal Law” (Xing fa zhi 刑法志) of the Hanshu 漢書 hardly provide objective information on the legal system of the Qin. Texts of Qin statutes are not quoted in the Shiji. Insights into the juris- diction can be gained from accounts of over a dozen criminal cases,9 which, however, were intended to illustrate the despotism of legal authorities and the misuse of penal law. The sources name draconic criminal regulations which are said to have served as the most important instrument of Qin rule. Sima Qian 司馬遷 (145 or 135–86 BC) emphasises the importance of the penal reform (bian fa 變法) initiated by the legalist chancellor Shang Yang in Qin around 350 BC.10 These reforms implemented a meritocratic system, in which military achievements led to social ascension. Punishments that “did not spare the mighty and powerful”,11 and were imposed without regard to the person, served to discipline a disordered society and to consolidate power. An innovation was the division of the population into units of five and ten households, the mem- bers of which were collectively liable (lian zuo 連坐) for each other and were facing the severest form of death penalty (being cut in two at the waist, yao zhan 腰斬) if they failed to report an offender from their own unit to the authorities.12 However, the level of penalties mentioned seems to be a Han time exaggeration because in actual practice the collective punishment never 8 Jinshu 30, 922; Tanglü shuyi 1, 2. The titles of the six chapters of penal law were Dao 盜, Zei 賊, Qiu 囚, Bu 捕, Za 雜 and Ju 具. 9 Guo Chengwei 1992, 21–24; Xin Ziniu 1997, vol. 1, 88–101. Cf. the famous criminal proceedings against the former chancellor Li Si (Shiji 87, 2560–2562; translation in Bodde 1938, 48–52). 10 Shiji 68, 2229. 11 Zhanguoce 39/12/23. 12 Shiji 68, 2230..